Gregg V. Georgia - Other Views Expressed in These Cases

Other Views Expressed in These Cases

Justices Brennan and Marshall expressed their views, which they also articulated in Furman, that the death penalty does not deter crime and that our society has evolved to the point that it is no longer an appropriate vehicle for expressing retribution. In every subsequent capital case that would come before the Court during their tenures, they would refer to their opinions in Gregg in support of their vote against the death penalty.

Justice White countered that capital punishment cannot be unconstitutional because the Constitution expressly mentions it and because two centuries of Court decisions assumed that it was constitutional. Furthermore, for White the judgment of the legislatures of 35 states was paramount, and suggested that the punishment should remain in use. He also felt that the Court should defer to a state legislature's response to the problem of juror response to the prospect of capital punishment, rather than dictate that the Eighth Amendment requires a particular response.

White also disagreed that the Constitution required a separate penalty hearing before imposing the death penalty. "Even if the character of the accused must be considered under the Eighth Amendment, surely a State is not constitutionally forbidden to provide that the commission of certain crimes conclusively establishes that the criminal's character is such that he deserves death." He also saw no difference between Louisiana's definition of first-degree murder and Texas's definition of capital murder.

Justice Rehnquist would have upheld North Carolina's and Louisiana's mandatory death penalties. He disputed the historical evidence adduced in support of the claim that American juries dislike mandatory death penalties. He also felt that the Court's decisions had an analytical flaw. The Court had struck down the mandatory death penalty because it took away discretion from the jury. Yet, Rehnquist pointed out, a jury in Georgia could reject the death penalty for no reason at all. Thus, Georgia's scheme did not alleviate the concerns articulated in Furman about the arbitrariness of the death penalty any more than North Carolina's ignored them. He also disputed whether the appellate review of death sentences inherent in the systems the Court had approved could truly ensure that each death sentence satisfied those concerns. He finally took issue with the idea that the fact that "death is different" requires any extra safeguards in the sentencing process.

Justice John Paul Stevens remarked in October 2010 that his vote in the decision was regrettable. Stevens told the Washington Post that his vote was made with respect for precedent within the court that held capital punishment to be constitutional.